AS v CPW (Rev 1)

In proceedings concerning a child taken abroad, the court held that the welfare principle under the Children Act 1989 governed an inward return application outside the Hague Convention regime. A Gillick-competent child’s wishes on the particular issue should normally be given effect where they are not objectively foolish or unreasonable, although the court retains power to override them in the child’s best interests. Wardship should not be sought reflexively: it adds value only where specific features are identified and justified. Non-Hague return applications should ordinarily be issued in the Family Court as applications for specific issue and/or prohibited steps orders.

The father sought the summary return to England of B, aged 14½, who had been taken by the mother to Sierra Leone and left with maternal family. The mother applied retrospectively for permission for B to remain in Sierra Leone until completing his GCSEs. The father also sought child arrangements orders concerning B and the parties’ two younger children.

The court considered B’s strongly expressed wish to remain in Sierra Leone, the welfare factors relied upon by the father, the proper procedural route for a non-Hague return application, whether wardship was necessary, the children’s representation, and arrangements for contact and overseas holidays.

1. Return application. The father’s application for a summary inward return order was dismissed. The mother’s application to keep B in Sierra Leone until summer 2022 was granted. The decision was governed by the paramountcy of the child’s welfare under section 1(1) of the Children Act 1989, with regard to the welfare checklist in section 1(3).
2. Weight to B’s wishes. B was Gillick-competent and his wish to remain in Sierra Leone was emphatic, categorical and rationally explained. A competent child’s wishes on the particular issue are not merely to be given due regard. If they are not objectively foolish or unreasonable, they should normally be given effect. The court retains power to override such wishes in the child’s best interests, but concluded that the threshold for doing so was not met.
3. Wardship and forum. None of the children needed to remain wards of court. Wardship adds nothing in many cases beyond the inherent and statutory jurisdictions, and any claimed advantage must be clearly identified and supported by evidence. Once the passport order had been obtained, the remaining issues could have been determined in the Family Court through specific issue and prohibited steps orders under section 8 of the Children Act 1989. Non-Hague return applications should ordinarily be issued in the Family Court. A tipstaff application, if required, should be confined to that relief.
4. Contact and safeguards. B was to have unrestricted WhatsApp audio and video communication with his father. Contact with the younger children was to be supervised, initially by weekly recorded Zoom sessions and thereafter by fortnightly direct supervised contact. The arrangements were to be reviewed after four months of direct contact.
5. Overseas holidays and procedure. The younger children could visit Sierra Leone subject to safeguards, including registration of the judgment and order there under the Foreign Judgments (Reciprocal Enforcement) Act 1960. The private law proceedings were transferred back to the Family Court at Bromley. The court deprecated duplicative endorsements of penal notices beside individual paragraphs where the required notice already appeared on the front page.